Onwards to referendum

Turkey’s Constitutional Court clears the final hurdle on a presidential referendum later this year

The Constitutional Court ruled this evening that the Turkish people should be allowed to decide whether they want to elect their own president. It comes after President Ahmet Necdet Sezer and the main opposition CHP formally complained about the way the proposal was voted through parliament. The Court’s decision is final: the Turkish people will be going to vote in a referendum in October at the very latest.

The ruling was always going to be a controversial one – this very blog saw a very heated discussion on the legalities surrounding the dispute – and the voting margin was as narrow it gets: six of the eleven high judges voted in favour of scrapping the complaint. Five were against.

My regular readers will know this was not the decision I was expecting, having lost considerable faith in the judiciary. But this was the right decision, and there is no need to wave a copy of the constitution about to understand why. An unelected body should not stop the Turkish people from choosing what they want to do. There is no democratic argument for it.

What happens next really depends on who wins the general election. If the AK party is returned to power, prime minister Recep Tayyip Erdoğan’s government might try again to pass a law that reduces the waiting time for a referendum to 45 days. That law has been vetoed by Mr Sezer once before; it would be near-comical if he decided to put a law about referendums to a referendum.

If the AK party does not win the election, some experts say the new government might try to elect Mr Sezer’s successor in parliament, using the existing system. But AK will probably still have enough seats to boycott and derail the process, just like the CHP did in April. Every lawyer has a different opinion.

All this, of course, is little more than speculation. It is not clear what the parliament will look like after July 22nd. What is clear is that Turkey’s constitution, drafted by the army in 1982, is drastically insufficient in coping with democratic crises. We need a new one.

We might just get it. AK’s election manifesto pledges a “civilian constitution” prepared with consultation and compromise. Mehmet Ağar’s Democrat Party and even the far-right Nationalist Action Party have made similar promises. But the CHP and the nationalist Youth Party have both kept quiet.

What needs to happen over the remainder of this summer is for Turkey’s new parliament to elect a new president under the existing system, so that Mr Sezer’s term can finally end and stability can finally return to the pyramid’s peak. The new government should then set to work on a new constitution that overhauls the entire system. The president would then act as a transitional figure until 2012, when the next head of state would be elected by the people. Turkey’s transition to a country truly operating under the rule of law would then be complete.

And once again, unrelenting as I am, I nominate Hikmet Çetin to oversee that transition.

I can’t comment on the Court’s decision since I am unfamiliar with the Turkish Constitution and with Turkish law generally. But I can comment on your argument offered in support of the Turkish Court’s decision since your argument explicitly is not a legal one. The argument, which I see offered all too frequently in one form or another in contexts outside Turkey too, is completely unsound.

You say: “But this was the right decision, and there is no need to wave a copy of the constitution about to understand why. An unelected body should not stop the Turkish people from choosing what they want to do. There is no democratic argument for it.” If this argument were sound, then one of the really fundamental characteristics of government in the United States, namely, the power of the unelected federal courts to invalidate duly enacted legislation on the ground that the legislation violates the U.S. Constitution, is just a terrible flaw in American democracy. The fact that you will find no one in the United States advocating that position indicates just how unsound your argument is.

Your mistake is that you fail to recognize that democracy does not mean the tyranny of the majority. In order for democracy to succeed, strong institutions and political mechanisms must be established to protect the liberty of the individual even when the individual happens to find himself in the minority.

However, here we have a situation where it is not the constitution blocking the democratic tyrrany of the majority, but eleven judges.

When you consider that the legal grounds for previous decisions by the court have been as clear as mud, that there is reason to believe that the the Turkish “establishment” has, at the very least, jogged the supreme courtly elbow in its decisions, and that most of the media discussion of the previous decision cancelling the presidential election seems to have centred around precedent and advantage rather than what the constitution actually says, then James’ comments have weight. It interests me tremendously that none of the pundits have really sat down and said “The consitution says x,y and z. Therefore…..” In the vacuum created by this decision, no one seems willing to make any coment on the document itself.

The most charitable interpretation of the previous decision is that the supreme court meant that the constitution was not clear and so the decision which the CHP challenged should be suspended pending formal clarification by act of parliament. But I would think that is very, very charitable. Excessively so, in fact.

It would be nice to believe that six members of the supreme court were sufficently embarrassed by this to say, “Hey, we’ve got a constitution. Let’s actually apply it this time.” over the referendum.

The point that I was trying to make, perhaps not quite as clearly as I would have liked, was that there is no need to resort to legal arguments to defend the court’s decision. A contrary decision would have meant denying a referendum, denying the people their say on electing the most important person in the country. That is why it is democratically unjustifiable. Oh, and and it was the right legal decision as well.

The anonymous poster makes an excellent point, and in most cases I would agree with it. I don’t believe across-the-board democracy works. But I’m sure he would agree that just as fundamental as the power of an unelected court to revoke violating laws is the power of the people to elect their own president. Turkey is at a stage when needs more democracy, not less.

You argue that “just as fundamental as the power of an unelected court to revoke violating laws is the power of the people to elect their own president. Turkey is at a stage when needs more democracy, not less.”

But Turkey’s presidential post is not like that of France or the United States. A popular vote to elect the President may sound ideal because it’s ‘getting the people involved’, but there are far more fundamental changes that need to take place first.

For example, you are giving a previously quasi-ceremonial post a great deal of political legitimacy, therefore you must introduce a whole new set of powers for the title. And with great power comes great responsibility so you need to revamp the present system of checks and balances. I agree with anonymous regarding the judiciary – at one point or another there is no such thing as ‘absolute democracy’ and we are forced to trust in our institutions rather than an ideology. Otherwise, as I once told a hearty fellow by the name of Simon, ‘true democracy’ is 51% of the population enslaving the other 41%.

Isik – quite right, that’s not what I’m arguing. And I do believe the president’s post should be reformed before it is opened up to popular election.

Where I disgaree with you is over your definition of the president’s powers. “Quasi-ceremonial” is certainly not a term I would use, because even though the president does not have the power to propose legislation, he does have the power the overturn just about any law or appointment that comes out of a democratically elected parliament. That, in my opinion, is wrong, and needs to change.

In a sense, we do agree. There is a greater need for checks and balances. And I agree with anonymous – there should be strong mechanisms in place to protect an individiual in the minority. I just feel that, as things stand in Turkey, things are too far in the opposite direction.